Wijewardhanage and Minister for Immigration and Border Protection (Citizenship)

This case concerned an application for Australian citizenship by Ms Wijewardhanage and her two children, Krishni and Tristan. The primary dispute revolved around whether Ms Wijewardhanage met the general residence requirements for citizenship, specifically whether she had at any time been an unlawful non-citizen. The Administrative Appeals Tribunal was required to determine this issue, as well as the eligibility of her children for citizenship.

The legal issues before the Tribunal were twofold: first, whether Ms Wijewardhanage satisfied the residence requirements for the grant of Australian citizenship, and second, whether her two children, Krishni Walpola and Tristan Walpola, met the criteria for citizenship. Central to the first issue was the question of whether Ms Wijewardhanage had been an unlawful non-citizen at any point during the relevant period, which would preclude her from meeting the general residence requirements under the *Citizenship Act*.

The Tribunal considered the applicant's visa history, noting that her WB-020 bridging visa expired on 14 January 2014. It was common ground that she applied for a new visa on 15 January 2014, and a WE class visa was granted on the same day. The Minister argued that Ms Wijewardhanage was an unlawful non-citizen for a period of at least nine hours between the expiry of her previous visa and the grant of the new one. The Tribunal found that, applying sections 13 and 14 of the *Migration Act*, Ms Wijewardhanage was indeed an unlawful non-citizen from midnight on 14 January 2014 until the grant of her new visa on 15 January 2014. This period meant she failed to meet the general residence requirement under paragraph 22(1)(b) of the *Citizenship Act*, which requires that an applicant not have been an unlawful non-citizen "at any time" during the qualification period. The Tribunal affirmed the reviewable decision.